IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

DAWN COLETTE BLAND and AUTUMN NICOLE BLAND Wife and Infant Daughter of Douglas Wayne Bland TROOPER ROBERT JOSEPH ELSWICK TROOPER IVIICHAEL DAVID LYNCH TROOPER 1 MOTHY LANE BRAGG TROOPER CHRISTOPHER LEE CASTO TROOPER JEFFREY LEAL TON COOPER TROOPER BRAD LEE MANKINS TROOPER ROGER DALE BOONE TROOPER STEVEN P OWENS and TROOPER ADAM WILSON SCOTT Plaintiffs Below

Petitioners v No 11middot0746

STATE OF WEST VIRGINIA WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD a West Virginia state agency and public corporate body WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENT SYSTEM a West Virginia state agency and public corporate body TERASA L MILLER Acting Executive Director of West Virginia Consolidated Public Retirement Board Defendants Below

Respondents

RESPONDENTS BRIEF

Thomas S Sweeney (WVSB No 3672) bull Counsel of Record E Taylor George (WVSB No 8892) MacCorkle Lavender amp Sweeney PLLC 300 Summers Street Suite 800 Post Office Box 3283 Charleston West Virginia 25332-3283 (304) 344-5600

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 5

STATEMENT REGARDING ORAL ARGUMENT AND DECISION 9

ARGUMENT 10

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL 10

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AIID PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAI NST THE CPRB 23

CONCLUSION 28

413268

TABLE OF AUTHORITIES

Cases

Arnold Agency v W Va Lottery Commn 206 W Va 583 526 SE2d 814 (1999) 26

Asaad v Res-Care Inc 197 WVa 684 478 SE2d 357 360 (1996) 10 18

Beahm v 7-Eleven Inc 223 WVa 269 672 SE2d 598 (2008) 17 18 amp 20

Parkulo v W Va Bd of Probation and Parole 199 W Va 161483 SE2d 507 (1996) 27

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 517 SE2d 763 (1999) 19

Statutes

W Va Code sect 29A-5-4 (LEXIS through 2011 Regular Sess) 15

413268 11

STATEMENT OF THE CASE

The Respondents and Defendants below find the Procedural History set forth in

the Petitioners Statement of the Case to be substantially accurate but also believe that it

is unduly argumentative in certain respects and that it presents information that is not

relevant to this appeal regardless of its factual accuracy The Respondents limit their

supplementation and corrections to the matters that they believe to be relevant as

follows

Petitioners Complaint in the lower court alleges that the Petitioners are members

or dependants of members of the 42nd 43rd

44th and 45th Cadet Classes of the West

Virginia State Police (hereinafter State Police) who joined the State Police in the belief

that they would be enrolled in a benefit and retirement plan known as the West Virginia

State Police Death Disability and Retirement Fund (referred to in the Complaint and

through the prior litigation as Plan A) that would provide certain established benefits

but that they were actually enrolled in a plan known as the West Virginia State Police

Retirement System (referred to in the Complaint as Plan B but to the extent that the

West Virginia State Police Retirement System has also been named as a party in this

matter and is a Respondent it will be referred to hereinafter as the SPRS) (Complaint

m 1- 3547-54)

Petitioners present a substantial amount of information relating to proceedings

before the Respondent West Virginia Consolidated Public Retirement Board (hereinafter

413268

CPRB) between December 1 2001 and May 18 20061 However Petitioners

continue to present matters that were determined in prior proceedings before the Circuit

Court of Kanawha County as if they remain in question More specifically Petitioners

continue to refer to a November 13 2002 final decision attributed to the CPRB

(Petitioners Brief at 3-4 7 11) Also although Petitioners correctly note that the Circuit

Court of Kanawha County denied Petitioners petition for a writ of mandamus seeking an

order requiring the CPRB to comply with the November 13 2002 decision (Petitioners

Brief at 7) Petitioners do not clarify that the circuit court expressly found that the

November 13 2002 vote did not constitute a final decision (AR at 292 Order dated

November 172004 CA No 03-MISC-473)

Petitioners correctly state that appeal of the November 17 2004 order was

refused but Petitioners fail to note that they have continued to refer to the November 13

2002 vote as a decision and that it is referred to as such not only in the Complaint filed

in the lower court (AR at 412-416 Complaint-r-r 72-7380-8192-94 AR at 1558shy

1562 Amended Complaint-r-r 72-7380-8192-94) but in the brieffiled in this appeal

(Petitioners Brief at 3-4 7 11) This is relevant to the lower courts dismissal of

Respondent Terasa L Miller (hereinafter Ms Miller) as the Petitioners most recent

allegations against Ms Miller are expressly based upon her purported failure to

implement the so-called November 132002 decision (AR at 415-416 Complaint-r-r

88-89 92-94 AR at 1558-1562 Amended Complaint-r-r 88-89 92-94) In fact the

1 Respondents most detailed presentation relating to the nature of relevant prior proceedings and actions was set forth in the CPRBs Amended Motion filed in the lower court (AR at 1003-1011)

413268 2

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

STATEMENT OF THE CASE 1

SUMMARY OF ARGUMENT 5

STATEMENT REGARDING ORAL ARGUMENT AND DECISION 9

ARGUMENT 10

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL 10

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AIID PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAI NST THE CPRB 23

CONCLUSION 28

413268

TABLE OF AUTHORITIES

Cases

Arnold Agency v W Va Lottery Commn 206 W Va 583 526 SE2d 814 (1999) 26

Asaad v Res-Care Inc 197 WVa 684 478 SE2d 357 360 (1996) 10 18

Beahm v 7-Eleven Inc 223 WVa 269 672 SE2d 598 (2008) 17 18 amp 20

Parkulo v W Va Bd of Probation and Parole 199 W Va 161483 SE2d 507 (1996) 27

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 517 SE2d 763 (1999) 19

Statutes

W Va Code sect 29A-5-4 (LEXIS through 2011 Regular Sess) 15

413268 11

STATEMENT OF THE CASE

The Respondents and Defendants below find the Procedural History set forth in

the Petitioners Statement of the Case to be substantially accurate but also believe that it

is unduly argumentative in certain respects and that it presents information that is not

relevant to this appeal regardless of its factual accuracy The Respondents limit their

supplementation and corrections to the matters that they believe to be relevant as

follows

Petitioners Complaint in the lower court alleges that the Petitioners are members

or dependants of members of the 42nd 43rd

44th and 45th Cadet Classes of the West

Virginia State Police (hereinafter State Police) who joined the State Police in the belief

that they would be enrolled in a benefit and retirement plan known as the West Virginia

State Police Death Disability and Retirement Fund (referred to in the Complaint and

through the prior litigation as Plan A) that would provide certain established benefits

but that they were actually enrolled in a plan known as the West Virginia State Police

Retirement System (referred to in the Complaint as Plan B but to the extent that the

West Virginia State Police Retirement System has also been named as a party in this

matter and is a Respondent it will be referred to hereinafter as the SPRS) (Complaint

m 1- 3547-54)

Petitioners present a substantial amount of information relating to proceedings

before the Respondent West Virginia Consolidated Public Retirement Board (hereinafter

413268

CPRB) between December 1 2001 and May 18 20061 However Petitioners

continue to present matters that were determined in prior proceedings before the Circuit

Court of Kanawha County as if they remain in question More specifically Petitioners

continue to refer to a November 13 2002 final decision attributed to the CPRB

(Petitioners Brief at 3-4 7 11) Also although Petitioners correctly note that the Circuit

Court of Kanawha County denied Petitioners petition for a writ of mandamus seeking an

order requiring the CPRB to comply with the November 13 2002 decision (Petitioners

Brief at 7) Petitioners do not clarify that the circuit court expressly found that the

November 13 2002 vote did not constitute a final decision (AR at 292 Order dated

November 172004 CA No 03-MISC-473)

Petitioners correctly state that appeal of the November 17 2004 order was

refused but Petitioners fail to note that they have continued to refer to the November 13

2002 vote as a decision and that it is referred to as such not only in the Complaint filed

in the lower court (AR at 412-416 Complaint-r-r 72-7380-8192-94 AR at 1558shy

1562 Amended Complaint-r-r 72-7380-8192-94) but in the brieffiled in this appeal

(Petitioners Brief at 3-4 7 11) This is relevant to the lower courts dismissal of

Respondent Terasa L Miller (hereinafter Ms Miller) as the Petitioners most recent

allegations against Ms Miller are expressly based upon her purported failure to

implement the so-called November 132002 decision (AR at 415-416 Complaint-r-r

88-89 92-94 AR at 1558-1562 Amended Complaint-r-r 88-89 92-94) In fact the

1 Respondents most detailed presentation relating to the nature of relevant prior proceedings and actions was set forth in the CPRBs Amended Motion filed in the lower court (AR at 1003-1011)

413268 2

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

TABLE OF AUTHORITIES

Cases

Arnold Agency v W Va Lottery Commn 206 W Va 583 526 SE2d 814 (1999) 26

Asaad v Res-Care Inc 197 WVa 684 478 SE2d 357 360 (1996) 10 18

Beahm v 7-Eleven Inc 223 WVa 269 672 SE2d 598 (2008) 17 18 amp 20

Parkulo v W Va Bd of Probation and Parole 199 W Va 161483 SE2d 507 (1996) 27

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 517 SE2d 763 (1999) 19

Statutes

W Va Code sect 29A-5-4 (LEXIS through 2011 Regular Sess) 15

413268 11

STATEMENT OF THE CASE

The Respondents and Defendants below find the Procedural History set forth in

the Petitioners Statement of the Case to be substantially accurate but also believe that it

is unduly argumentative in certain respects and that it presents information that is not

relevant to this appeal regardless of its factual accuracy The Respondents limit their

supplementation and corrections to the matters that they believe to be relevant as

follows

Petitioners Complaint in the lower court alleges that the Petitioners are members

or dependants of members of the 42nd 43rd

44th and 45th Cadet Classes of the West

Virginia State Police (hereinafter State Police) who joined the State Police in the belief

that they would be enrolled in a benefit and retirement plan known as the West Virginia

State Police Death Disability and Retirement Fund (referred to in the Complaint and

through the prior litigation as Plan A) that would provide certain established benefits

but that they were actually enrolled in a plan known as the West Virginia State Police

Retirement System (referred to in the Complaint as Plan B but to the extent that the

West Virginia State Police Retirement System has also been named as a party in this

matter and is a Respondent it will be referred to hereinafter as the SPRS) (Complaint

m 1- 3547-54)

Petitioners present a substantial amount of information relating to proceedings

before the Respondent West Virginia Consolidated Public Retirement Board (hereinafter

413268

CPRB) between December 1 2001 and May 18 20061 However Petitioners

continue to present matters that were determined in prior proceedings before the Circuit

Court of Kanawha County as if they remain in question More specifically Petitioners

continue to refer to a November 13 2002 final decision attributed to the CPRB

(Petitioners Brief at 3-4 7 11) Also although Petitioners correctly note that the Circuit

Court of Kanawha County denied Petitioners petition for a writ of mandamus seeking an

order requiring the CPRB to comply with the November 13 2002 decision (Petitioners

Brief at 7) Petitioners do not clarify that the circuit court expressly found that the

November 13 2002 vote did not constitute a final decision (AR at 292 Order dated

November 172004 CA No 03-MISC-473)

Petitioners correctly state that appeal of the November 17 2004 order was

refused but Petitioners fail to note that they have continued to refer to the November 13

2002 vote as a decision and that it is referred to as such not only in the Complaint filed

in the lower court (AR at 412-416 Complaint-r-r 72-7380-8192-94 AR at 1558shy

1562 Amended Complaint-r-r 72-7380-8192-94) but in the brieffiled in this appeal

(Petitioners Brief at 3-4 7 11) This is relevant to the lower courts dismissal of

Respondent Terasa L Miller (hereinafter Ms Miller) as the Petitioners most recent

allegations against Ms Miller are expressly based upon her purported failure to

implement the so-called November 132002 decision (AR at 415-416 Complaint-r-r

88-89 92-94 AR at 1558-1562 Amended Complaint-r-r 88-89 92-94) In fact the

1 Respondents most detailed presentation relating to the nature of relevant prior proceedings and actions was set forth in the CPRBs Amended Motion filed in the lower court (AR at 1003-1011)

413268 2

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

STATEMENT OF THE CASE

The Respondents and Defendants below find the Procedural History set forth in

the Petitioners Statement of the Case to be substantially accurate but also believe that it

is unduly argumentative in certain respects and that it presents information that is not

relevant to this appeal regardless of its factual accuracy The Respondents limit their

supplementation and corrections to the matters that they believe to be relevant as

follows

Petitioners Complaint in the lower court alleges that the Petitioners are members

or dependants of members of the 42nd 43rd

44th and 45th Cadet Classes of the West

Virginia State Police (hereinafter State Police) who joined the State Police in the belief

that they would be enrolled in a benefit and retirement plan known as the West Virginia

State Police Death Disability and Retirement Fund (referred to in the Complaint and

through the prior litigation as Plan A) that would provide certain established benefits

but that they were actually enrolled in a plan known as the West Virginia State Police

Retirement System (referred to in the Complaint as Plan B but to the extent that the

West Virginia State Police Retirement System has also been named as a party in this

matter and is a Respondent it will be referred to hereinafter as the SPRS) (Complaint

m 1- 3547-54)

Petitioners present a substantial amount of information relating to proceedings

before the Respondent West Virginia Consolidated Public Retirement Board (hereinafter

413268

CPRB) between December 1 2001 and May 18 20061 However Petitioners

continue to present matters that were determined in prior proceedings before the Circuit

Court of Kanawha County as if they remain in question More specifically Petitioners

continue to refer to a November 13 2002 final decision attributed to the CPRB

(Petitioners Brief at 3-4 7 11) Also although Petitioners correctly note that the Circuit

Court of Kanawha County denied Petitioners petition for a writ of mandamus seeking an

order requiring the CPRB to comply with the November 13 2002 decision (Petitioners

Brief at 7) Petitioners do not clarify that the circuit court expressly found that the

November 13 2002 vote did not constitute a final decision (AR at 292 Order dated

November 172004 CA No 03-MISC-473)

Petitioners correctly state that appeal of the November 17 2004 order was

refused but Petitioners fail to note that they have continued to refer to the November 13

2002 vote as a decision and that it is referred to as such not only in the Complaint filed

in the lower court (AR at 412-416 Complaint-r-r 72-7380-8192-94 AR at 1558shy

1562 Amended Complaint-r-r 72-7380-8192-94) but in the brieffiled in this appeal

(Petitioners Brief at 3-4 7 11) This is relevant to the lower courts dismissal of

Respondent Terasa L Miller (hereinafter Ms Miller) as the Petitioners most recent

allegations against Ms Miller are expressly based upon her purported failure to

implement the so-called November 132002 decision (AR at 415-416 Complaint-r-r

88-89 92-94 AR at 1558-1562 Amended Complaint-r-r 88-89 92-94) In fact the

1 Respondents most detailed presentation relating to the nature of relevant prior proceedings and actions was set forth in the CPRBs Amended Motion filed in the lower court (AR at 1003-1011)

413268 2

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

CPRB) between December 1 2001 and May 18 20061 However Petitioners

continue to present matters that were determined in prior proceedings before the Circuit

Court of Kanawha County as if they remain in question More specifically Petitioners

continue to refer to a November 13 2002 final decision attributed to the CPRB

(Petitioners Brief at 3-4 7 11) Also although Petitioners correctly note that the Circuit

Court of Kanawha County denied Petitioners petition for a writ of mandamus seeking an

order requiring the CPRB to comply with the November 13 2002 decision (Petitioners

Brief at 7) Petitioners do not clarify that the circuit court expressly found that the

November 13 2002 vote did not constitute a final decision (AR at 292 Order dated

November 172004 CA No 03-MISC-473)

Petitioners correctly state that appeal of the November 17 2004 order was

refused but Petitioners fail to note that they have continued to refer to the November 13

2002 vote as a decision and that it is referred to as such not only in the Complaint filed

in the lower court (AR at 412-416 Complaint-r-r 72-7380-8192-94 AR at 1558shy

1562 Amended Complaint-r-r 72-7380-8192-94) but in the brieffiled in this appeal

(Petitioners Brief at 3-4 7 11) This is relevant to the lower courts dismissal of

Respondent Terasa L Miller (hereinafter Ms Miller) as the Petitioners most recent

allegations against Ms Miller are expressly based upon her purported failure to

implement the so-called November 132002 decision (AR at 415-416 Complaint-r-r

88-89 92-94 AR at 1558-1562 Amended Complaint-r-r 88-89 92-94) In fact the

1 Respondents most detailed presentation relating to the nature of relevant prior proceedings and actions was set forth in the CPRBs Amended Motion filed in the lower court (AR at 1003-1011)

413268 2

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

most recent allegations against Ms Miller are in all relevant respects identical to those

asserted in the petition for writ of mandamus filed by the Petitioners in the Circuit Court

of Kanawha County in 2003 (AR at 175-177 Petition ~~ 45-4653-55 CA No 03shy

MISC-473)

In 2003 Petitioners filed a petition for writ of mandamus in the Circuit Court of

Kanawha County (AR at 168-178 Petition CA No 03-MISC-473) seeking a ruling

that the CPRB had no authority to reconsider its November 13 2002 vote and that the

CPRBs executive officers including Ms Miller2 had a nondiscretionary and mandatory

duty to implement the CPRBs November 13 2002 vote to permit the requested

transfer of the Petitioners into the retirement system referred to as Plan A Petitioners

also filed a memorandum of law in support of their position (AR at 1061-1090

Memorandum of Law CA No 03-MISC-473) In an order dated November 17 2004

the circuit court ruled that the CPRB did have the authority to reconsider its November

13 2002 vote as that vote had not been reduced to a written final order containing

appropriate findings of fact and conclusions of law as required by statute (AR at 1049shy

1053 Order dated November 17 2004 CA No 03-MISC-473) Petitioners petitioned

for appeal of that order but the petition was refused (AR at 1056-1057 Supreme

Court Order dated May 252005 No 050743)

The proceedings before the CPRB ultimately resulted in the CPRBs adoption of

the recommended decisions of the hearing officer (AR at 363-394 First Supplemental

Recommended Decision of Hearing Officer dated February 17 2006 AR at 689-773

21n Kanawha County Civil Action No 03-MISC-473 Ms Miller was named as Terasa Robertson

413268 3

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

Second Supplemental Recommended Decision of Hearing Officer dated May 82008)

which were appealed to the Circuit Court of Kanawha County The circuit court

subsequently entered an order affirming the CPRBs refusal to transfer the Petitioners

into Plan A which order included the following pertinent findings and conclusions

8) None of the Petitioners in this case were employed by the WV State Police until 6 months after the effective date of WV Code sect 15shy2A-3(a) which closed enrollment in Plan A Petitioners were provided with and signed enrollment forms providing for Plan B benefits Petitioners are therefore charged with the knowledge of the law as [it] exists in the statute There is no evidence that the Board made false statements or disseminated any false or misleading information to the Petitioners The Board cannot now be estopped from carrying out the clear mandates of WV Code sect 15-2A-1 et seq despite any potential misrepresentations by state police officials

12) In the case at bar the Petitioners have failed to show that there was any misrepresentation on the part of the Board that induced them to enroll in Plan B

(AR at 866-867 Final Order dated November 202008 CA No 06-AA-55) The

Petitioners then petitioned for appeal of the circuit courts final order to this Court and

the petition was refused (AR at 925-926 Corrected Order dated May 13 2009 No

090481 )

413268 4

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

SUMMARY OF ARGUMENT

Petitioners focus solely on proceedings before the CPRB and fail to consider the

effect of the mandamus action that they filed in the Circuit Court of Kanawha County in

2003 Civil Action No 03-MISC-473 seeking a ruling that the CPRB had no authority to

reconsider its November 13 2002 vote and that the CPRBs executive officers

including Ms Miller had a nondiscretionary and mandatory duty to implement the

CPRBs November 13 2002 vote to permit the requested transfer of the Petitioners into

the retirement system referred to as Plan A In that action in an order dated November

17 2004 the circuit court ruled that the CPRB did have the authority to reconsider its

November 13 2002 vote as that vote had not been reduced to a written final order

containing appropriate findings of fact and conclusions of law as required by statute

Petitioners have continued to argue that the November 12 2002 vote of the CPRB

constituted the true final decision of the CPRB as if this question is still at issue

Pursuant to the doctrine of collateral estoppel that issue has been determined The

order denying Petitioners mandamus petition also specifically addressed the allegedly

wrongful acts of Ms Miller As the only specific allegations relating to the role of

Respondent Terasa L lVIiller are those relating to her involvement with the

reconsideration of the November 12 2002 vote of the CPRB there is no basis for a

claim against her and she was properly dismissed by the lower court

The issues and pOints of law that are raised in the instant action in support of the

Petitioners claims against the CPRB have been raised and argued in prior actions

before the CPRB in circuit court and in appeals refused by this Court rendering those

circuit court decisions final The facts now alleged are the same facts that have been

413268 5

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

relied upon by the Petitioners in the prior litigation thus the causes of action are the

same Much of the relief sought by the Petitioners including Petitioners transfer into

Plan A a ruling that the CPRB has violated Petitioners due process rights and a ruling

that the CPRB be compelled to take action to compel funding of the retirement and

benefit plans has been the object of the prior litigation The Petitioners were parties to

the prior litigation or in privity with the parties and had a full and fair opportunity to

litigate the exact issues based upon the same facts in proceedings before the

appropriate circuit court The doctrines of collateral estoppel and res judicata therefore

apply and bar further litigation against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them Petitioners cite no statute or case law

that would serve to create such a specific actionable duty on the part of the CPRB At

least implict in the lower courts ruling is the conclusion that no such actionable duty

exists The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court in this case expressly found that (1) by the time the Petitioner

employees were employed by the State Police WVa Code sect 15-2A-3 which closed

enrollment in Plan A had been in effect for six months (2) the Petitioners were provided

with and signed enrollment forms providing for Plan B (SPRS) benefits and are

therefore charged with the knowledge of the applicable statute and (3) there is no

evidence that the CPRB made false statements disseminated any false or misleading

information to the Petitioners or otherwise made misrepresentations to the Petitioners

that induced the Petitioners to join the State Police Thus in order to state a claim

413268 6

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various motions relating to these Respondents and particularly to

Respondents Terasa L Miller the State of West Virginia PERS and SPRS the

Petitioners did not make a clear record of that objection A detailed review of the

transcript for the January 202011 hearing could support the argument that Petitioners

could have intended to make such an objection and that such an objection could be

implied in statements made on Petitioners behalf at that hearing However Petitioners

had an obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling Further consideration

of the actual substance of the motions filed on behalf of Ms Miller the State of West

Virginia the PERS and the SPRS the lower courts rulings thereon and Petitioners

argument relating to the third assignment of error renders this objection and second

assignment of error moot

Even if is assumed for the sale of argument that the Petitioners may proceed

further in this matter the relief that Petitioners seek would only be available if at all

from Respondent CPRB or the State Police and there is no basis for retaining

Respondents Terasa L Miller the State of West Virginia the PERS and the SPRS as

413268 7

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

parties3 Were the CPRB to remain as a defendant below the lower court would have

before it the only State representative other than the State Police against whom the

Petitioners have asserted specific and distinct allegations of wrongdoing Petitioners

have asserted no distinct allegations of negligence or other wrongdoing against the

State of West Virginia the PERS or the SPRS As the CPRB is a State agency and is

for the purposes of litigation the State of West Virginia there is no basis or reason to

name the State of West Virginia as if it is a separate and distinct entity As the CPRB

administers both the PERS and the SPRS both of which are merely state programs and

not agencies4 and no allegations of wrongdoing have been made against either

retirement system there is no basis to retain the PERS or the SPRS as parties As is

noted above and elsewhere the only specific allegations made against Ms Miller relate

to her role as an employee of the CPRB and to an issue that has been litigated and

resolved in her favor There is no reason or legal basis to retain her as a distinct party

given the presumed presence of the CPRB Therefore even if the CPRB is retained as

a party for further proceedings in the lower court Respondents Terasa L Miller State of

West Virginia PERS and SPRS were properly dismissed making Petitioners third

Assignment of Error moot

3 All Respondents including the State Police have consistently held the position that the place the Petitioners must seek relief is in the Legislature as the Respondents were merely executing the law as written and passed by that body duly signed by the Governor

4 In other words Petitioners have sued a set of records not the people who administer them

413268 8

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

STATEMENT REGARDING ORAL ARGUMENT AND DECISION

This case is not appropriate for oral argument under W Va R App P 18(a) as

the law regarding Petitioners appeal is based solely around dispositive issues that have

been authoritatively decided many times by this Court and are bedrock principles of law

in the United States WVa Rule App Pro 18(a)(3) Accordingly this case is wellshy

suited for a memorandum decision To the extent that oral argument might be deemed

necessary by this Court Argument should be limited to Rule 19 argument as there are

no new or novel issues of law in this case and as previously stated this case is

appropriate for memorandum decision

413268 9

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

ARGUMENT

A PETITIONERS CLAIMS AGAINST THE CPRB AND MS MILLER ARE BARRED BY THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL

Respondent Terasa L Miller

The central inquiry in determining whether the doctrine of collateral estoppel

constitutes a bar to a claim is whether a given issue has been actually litigated by the

parties in an earlier suit As this Court has stated

U[R]es judicata [or claim preclusion] serves to advance several related policy goals-(1) to promote fairness by preventing vexatious litigation (2) to conserve judicial resources (3) to prevent inconsistent decisions and (4) to promote finality by bringing litigation to an end

Collateral estoppel or issue preclusion is supported by the same public policy considerations as res judicata [W]e [have] indicatedu Collateral estoppel will bar a claim if four conditions are met (1) The issue previously decided is identical to the one presented in the action in question (2) there is a final adjudication on the merits of the prior action (3) the party against whom the doctrine is invoked was a party or in privity with a party to a prior action and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action

Asaad v Res-Care Inc 197 Wva 684 687478 SE2d 357 360 (1996) (citations

omitted)(emphasis added)

The only allegations against Ms Miller are based upon her purported failure to

perform a mandatory statutory duty by immediately reducing the Boards November 13

2002 vote and decision to a written final order of the Board and acting to implement that

decision This is the exact issue previously raised in Civil Action No 03-MISC-473 and

addressed in the dismissal order as entered in that case (AR at 288-292) Appeal of

the dismissal order having been refused by this Court the order constitutes a final

413268 10

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

adjudication on the merits The Petitioners here were also Petitioners in Civil Action No

03-MISC-473 or in privity with them as the prior action was expressly brought in their

name and on behalf of similarly situated members of the same State Police classes

Finally as a review of their petition for writ of mandamus and supporting memorandum

shows the Petitioners had a full and fair opportunity to argue and litigate the exact

issues they are attempt to raise in the instant action (AR at 170 172 175-177

Petition for Writ of Mandamus -r-r 27-28 34 45-46 53-56 CA No 03-MISC-473 AR

at 1650-16581664-65 Memorandum of Law CA No 03-MISC-473) As essential

elements of the Petitioners claims against Ms Miller have already been litigated and

determined in Ms Millers favor Petitioners claims against her are barred by the

doctrine of collateral estoppel and were properly dismissed by the lower court on that

basis5

In the Complaint Ms Miller is identified as the Acting Executive Director of the

CPRB (AR at 404 Complaint-r 36) and it is further alleged that she is required to

perform certain mandatory duties as set forth in the applicable statutes and as directed

by the CPRB (AR at 404415-416 Complaint-r-r 3788-8994) Finally it is alleged

that certain relief was granted to the Petitioners by decision of the CPRB on November

13 2002 (AR at 415 Complaint 1f 91) that Ms Miller had a duty to implement that

decision (AR at 416 Complaint 1f 94) and that the CPRB had no authority to

5 At various times in this litigation Terasa L Miller has held the position of Acting Executive Director in the absence of an Executive Director appointed by the Governor but her actual post is as the CPRBs current Deputy Executive Director and Chief Operating Officer (AR at 1206 Dep of Terasa L Miller) To the extent that the Petitioners attempt to assert claims for equitable relief Petitioners have provided no explanation as to why the presence of CPRB as a party is not sufficient to obtain such relief should it be deemed appropriate 413268 11

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

reconsider its November 13 2002 decision at a later date as it did on January 22

2003 (AR at 415 Complaintm 92-93) Petitioners thus appear to allege that

although the CPRB clearly chose to reconsider its November 132002 decision and did

so on January 22 2003 Ms Miller should have nevertheless implemented the

November 13 2002 decision before the CPRB had an opportunity to reconsider it

The allegations relevant to Ms Miller were previously asserted in a Petition for

Writ of Mandamus filed in the Circuit Court of Kanawha County Civil Action No 03shy

MISC-473 on or about November 19 2003 (AR at 170 172 175-177 Petition for

Writ of Mandamus m 27-28 34 45-46 53-56 CA No 03-MISC-473)6 That action

was subsequently dismissed by order dated November 17 2004 (AR at 288-292

Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The Petitioners

petitioned for appeal of the dismissal order on April 8 2005 and the petition for appeal

was refused on May 25 2005 (AR at 1056-1057 Supreme Court Order dated May 25

2005 No 050743) Thus the dismissal order entered by the circuit court was a final

adjudication

The dismissal order expressly stated that the CPRBs executive officers had

properly exercised executive discretion after the CPRBs November 13 2002 meeting

by not immediately reducing the CPRBs decision to a final administrative order (AR at

289 Order Granting Defendants Motion to Dismiss CA No 03-MISC-473) The

dismissal order also held that the CPRB had the authority to reconsider a decision until

6The Petition filed in Civil Action No 03-MISC-473 does not refer to Terasa L Miller but to Terasa Robertson Ms Millers name at that time The Petition also expressly identifies other individuals ie Joseph J Jankowski Jr and J Michael Adkins as acting in their official capacities on behalf of the CPRB 413268 12

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

that decision was incorporated in a written final order (AR at 290-292 Order Granting

Defendants Motion to Dismiss CA No 03-IVIISC-473) As the only issues relating to

Ms Miller that are raised in the Complaint are issues that have already been determined

in Ms Millers favor the claims against Ms Miller are barred by the doctrine of collateral

estoppel and therefore the lower court was correct to dismiss the claims against Ms

Miller

CPRS

In the course of the proceeding before the CPRS the Petitioners provided

extensive testimony in a series of hearings before the CPRSs Hearing Officer Although

Petitioners have subsequently suggested that these hearings were a charade (AR at

417 Complaint 1m 99 102) in terms of discovery the Petitioners were able to testify as

they would have in depositions typically taken in a civil action As the Hearing Officer

accepted the Petitioners testimony as factually accurate the Petitioners cannot

reasonably complain that the Hearing Officers fact-finding was inadequate

Nevertheless Petitioners attempt to do exactly that contending that the CPRS had

previously argued that its procedures were not adequate for the task (Petitioners Srief

at 27) In the pleading cited by Petitioners the CPRS was referring to the potential need

to resolve factual disputes between the Petitioners and their employer the State Police

particularly in regard to the Petitioners claims that the State Police had misled them

and in regard to the accuracy of the Petitioners testimony that the promise of Plan A

retirement benefits was the primary or sole motivating factor for Petitioners joining the

State Police (AR at 1424 1435) Petitioners fail to note that this purported

413268 13

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

procedural inadequacy meant that Petitioners testimony as to these facts was accepted

by the Hearing Officer as true and accurate as a review of the Hearing Officers

Decisions shows In practical effect all potential factual disputes were resolved in

Petitioners favor and they have no basis for complaint on this point as the CPRBs

procedure was to their advantage Rather than actually dispute any factual findings of

the CPRB Decisions Petitioners appear to rely upon them

The relevant substance of the Petitioners testimony was summarized in the

Hearing Officers recommended decisions as adopted by the CPRB (AR at 362-394

Final Order and First Supplemental Recommended Decision of Hearing Officer AR at

688-773 Final Order and Second Supplemental Recommended Decision of Hearing

Officer) The Petitioners testimony indicated that the State Police had utilized an

inaccurate brochure that did not describe the terms of the SPRS (AR at 368-369 694)7

Each of the Petitioner employees did sign an enrollment form with the correct

designation ie West Virginia State Police Retirement System Per 15-2A when their

employment commenced (AR at 370-371696)8 Various Petitioner employees

learned that at least some of the terms of their retirement plan eg the contribution

rate differed from that referred to in recruitment materials while at the State Police

Academy but apparently did not inquire further or were told that the contribution rate

was the only change (AR at 375-378380-382384698701-704707-709711

71n addition certain discovery was carried out in the action now at issue A former State Police recruiter Dale Humphreys testified that he had prepared the recruitment brochure and continued to use it after it had become inaccurate (AR at 1226-1227)

8 In addition the content of the form was confirmed in the deposition of Respondent Terasa L Miller as taken in the action now at issue (AR at 1220-12211224) 413268 14

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

715-719721-725727-732734-737739-740743 746-747 749 752-755) The

Decisions included conclusions of law and noted various legal issues argued by the

Petitioners including detrimental reliance misrepresentation and promissory estoppel

and equal protection (AR at 385-393 762-769)

The Decisions were subsequently appealed to the Circuit Court of Kanawha

County as Civil Action No 06-AA-55 where the Petitioners argued detrimental reliance

promissory estoppel that both the State Police and the CPRS had an obligation to

advise the Petitioners of the specific terms of their retirement plan that the CPRS had

statutory authority to transfer the Petitioners into Plan A in order to correct the mistakes

that resulted in their enrollment in the SPRS that enrollment in the SPRS was an

impairment of contract obligations and a violation of equal protection and due process

rights that the creation of the SPRS was unconstitutional special legislation that the

CPRS was without jurisdiction and authority to reconsider its November 13 2002

decision that Terasa L Miller had a duty to implement the lJovember 13 2002

decision and that the proceedings before the CPRS violated the Petitioners

constitutional rights to due process and equal protection (AR at 844-857 Second

Supplemental Petition for Appeal CA No 06-AA-55) Pursuant to West Virginia Code

sect 29A-5-4 the circuit court could have reversed vacated or modified the CPRSs order

if it found the order to be 1) in violation of constitutional or statutory provisions 2) in

excess of the statutory authority or jurisdiction of the CPRS 3) made upon unlawful

procedure 4) affected by some other error of law 5) clearly wrong in view of the

evidence or 6) arbitrary capricious or characterized by an abuse of discretion (W Va

Code sect 29A-5-4(g) (LEXIS through 2011 Regular Sess) Thus the circuit court could

413268 15

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

have reversed the CPRSs order based upon virtually any of the Petitioners arguments

had the court deemed them meritorious

The final order entered in Kanawha County Civil Action No 06-AA-55 and relied

upon by the lower court expressly found that (1) by the time the Petitioner employees

were employed by the State Police WVa Code sect 15-2A-3 which closed enrollment in

Plan A had been in effect for six months (2) the Petitioners were provided with and

signed enrollment forms providing for Plan S (SPRS) benefits and are therefore

charged with the knowledge of the applicable statute and (3) there is no evidence that

the CPRS made false statements disseminated any false or misleading information to

the Petitioners or otherwise made misrepresentations to the Petitioners that induced

the Petitioners to join the State Police (AR at 866-867 Final Order dated November

202008 eA No 06-AA-55)

In the subsequent petition for appeal to this Court the Petitioners raised several

arguments and issues in support of their contention that the ePRS was required to

transfer them to Plan A including (1) that the ePRS has both the statutory authority and

a duty to transfer the Petitioners to Plan A in order to correct a mistake (2) that the

Petitioners have a property interest in their pension plan and are entitled to Plan A

benefits (3) that the doctrine of promissory estoppel applies and creates a contractual

obligation due to Petitioners reasonable reliance (4) that the denial of Plan A benefits

constitutes a denial of equal protection guaranteed by both the State and federal

constitutions and (5) that the CPRS had a duty to implement the November 13 2002

vote to transfer the plaintiffs to Plan A through issuance of a written order (AR at

1135-1152 Petition for Appeal of CA No 06-AA-55) In support of these arguments

413268 16

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

Petitioners relied upon and cited case law relating to the following issues 1) rights of

public employees under statutorily-created pension systems as contract rights 2)

detrimental reliance as a basis for the creation of protected contract property rights 3)

the availability of equitable remedies where a mistake has been induced as a result of a

partys inequitable conduct 4) the obligation of the CPRB to take court action where the

Legislature fails to act appropriately to correct inadequate funding of retirement plans

and 5) equitable estoppel based upon a representation or concealment of material facts

(AR at 1110-1115 Petition for Appeal of CA No 06-AA-55) The petition for appeal of

the circuit courts final order was refused (AR at 925-926 Corrected Order dated May

132009 No 090481) The Complaint filed in the action below asserts claims based

upon the following theories of recovery contract breach misrepresentation correction of

a mistake as a matter of both statutory authority and equity violation of due process the

duty of the defendants below to take legal action to enforce the funding requirements of

pension funds and refusal to transfer Petitioners into Plan A despite proof of Petitioners

detrimental reliance (AR at 419-421 Complaint)

Contrary to Petitioners arguments the lower court was correct to conclude that

the Petitioners claims are barred by the doctrines of res judicata and collateral estoppel

Res judicata or claim preclusion generally applies when there is a final judgment on the merits which precludes the parties or their privies from relitigating the issues that were decided or the issues that could have been decided in the earlier action

Beahm v 7-Eleven Inc 223 WVa 269 272 672 SE2d 598 601-02 (2008) (citations

omitted)

413268 17

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions

Beahm 223 Wva at 273672 SE2d at 602 (quoting Conley v Spillers 171 Wva

584 588 301 SE2d 216 219 (1983))

For a second action to be a second vexation which the law will forbid the two actions must have (1) substantially the same parties who sue and defend in each case in the same respective character (2) the same cause of action and (3) the same object

Before the prosecution of a lawsuit may be barred on the basis of res judicata three elements must be satisfied First there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings Second the two actions must involve either the same parties or persons in privity with those same parties Third the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

Beahm 223 WVa at 273672 SE2d at 602 (emphasis added) (citations omitted)

This Court has held that the relitigation of an issue is not precluded where the

procedures available in the first court are tailored to the prompt inexpensive

determination of small claims Asaad 197 WVa at 687-88 478 SE2d at 360-61 but

a bar will be imposed where the first courts procedures are similar to those found at the

circuit court level Here Petitioners have essentially complained that the evidentiary

hearings employed by the CPRB were lengthy and time-consuming and the Petitioners

legal arguments are reviewed and discussed at some length in the CPRB Decisions

The proceeding was not in fact prompt and inexpensive

413268 18

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

It is now well established that the doctrine of res judicata may be applied to quasi-judicial determinations of administrative agencies The standard by which this Court determines the preclusive effect of administrative adjudications is [as follows]

For issue or claim preclusion to attach to quasi-judicial determinations of administrative agencies at least where there is no statutory authority directing otherwise the prior decision must be rendered pursuant to the agencys adjudicatory authority and the procedures employed by the agency must be substantially similar to those used in a court In addition the identicality of the issues litigated is a key component to the application of administrative res judicata or collateral estoppel

Wheeling-Pittsburgh Steel Corp v Rowing 205 WVa 286 296 517 SE2d 763 773

(1999) (citations omitted) (emphasis added)

The third factor which must be present to support a res judicata determination is a finding that the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved had it been presented in the prior action

This Court has explained that with respect to the identity of the two causes of action

For purposes of res judicata a cause of action is the fact or facts which establish or give rise to a right of action the existence of which affords a party a right to judicial relief The test to determine if the cause of action involved in the two suits is identical is to inquire whether the same evidence would support both actions or issues

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually determined but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action It is not essential that the matter should have been formally put in issue in a former suit but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits An erroneous ruling of the court will not prevent the matter from being res judicata

413268 19

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

Accordingly res judicata may operate to bar a subsequent proceeding even if the precise cause of action involved was not actually litigated in the former proceeding so long as the claim could have been raised and determined

Beahm 223 WVa at 274-275672 SE2d at 603-04 (emphasis added) (citations

omitted)

In arguing that the causes of action are not identical Petitioners appear to

misunderstand the term cause of action As stated in the Beahm case [f]or purposes

of res judicata a cause of action is the fact or facts which establish or give rise to a

right of action the existence of which affords a party a right to judicial relief Beahm

223 WVa at 275 673 SE2d at 604 As noted above the facts are in Petitioners

favor and have been repeatedly relied upon by the Petitioners Thus the causes of

action have been the same throughout the litigation at issue

The central inquiry on a plea of res judicata is whether the cause of action in the

second suit is the same as the first suit while the central inquiry in determining whether

the doctrine of collateral estoppel constitutes a bar to a claim is whether a given issue

has been actually litigated by the parties in an earlier suit Here there can be no

question that the validity of the CPRBs Decisions has been litigated in the Circuit Court

of Kanawha County affirmed by the Circuit Court of Kanawha County and that the

Petitioners have petitioned this Court for appeal of these decisions The issues and

points of law that are raised in the instant action in support of the Petitioners claims

against the CPRB have been raised and argued in prior actions and in appeals refused

by this Court rendering those circuit court decisions final The facts now alleged are the

same facts that have been relied upon by the Petitioners in the prior litigation Much of

413268 20

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

the relief sought by the Petitioners including Petitioners transfer into Plan A a ruling

that the CPRB has violated Petitioners due process rights and a ruling that the CPRB

be compelled to take action to compel funding of the retirement and benefit plans has

been the object of the prior litigation The Petitioners were parties to the prior litigation

or in privity with the parties and had a full and fair opportunity to litigate the exact issues

based upon the same facts in proceedings before the appropriate circuit court The

doctrines of collateral estoppel and res judicata therefore apply and bar further litigation

against the CPRB

To the extent that the Petitioners argue that the CPRB had a duty to inform them

as to what benefits they were entitled to receive based upon employment with the State

Police and that the CPRB did not so inform them that issue was determined by the

circuit courts ruling that the Petitioners were charged with knowledge of the law

Further Petitioners cite no statute or case law that would serve to create such a specific

actionable duty on the part of the CPRB At least implicit in the lower courts ruling is the

conclusion that no such actionable duty exists To the extent that Petitioners might

argue that factual development is necessary Petitioners have deposed Respondent

Terasa LMiller as the representative of the CPRB in regard to the nature of the CPRBs

communication with public employees (AR at 1206-1224) In order to state a claim

against the CPRB the Petitioners must contend that the CPRB had an actionable duty

to independently inform the Petitioners of the terms of their retirement program The

Respondents are aware of no such duty and were it to be presumed to exist for the

sake of argument the elements of such a duty would have to be established in detail in

order to determine causation under the actual circumstances at issue ie the provision

413268 21

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

of inaccurate recruiting information by the State Police No such details have ever been

established by the Petitioners

B PETITIONERS OBJECTIONS TO THE LOWER COURTS CONSIDERATION OF ALL MOTIONS FILED BY THE RESPONDENTS WERE NOT CLEARLY PRESENTED AT THE TIME OF HEARING AND PETITIONERS THIRD ASSIGNMENT OF ERROR RENDERS THIS ISSUE MOOT

To the extent that Petitioners attempted at hearing in the lower court to reserve

argument on various more recently filed motions relating to these Respondents and

particularly to Respondents Terasa L Miller State of West Virginia PERS and SPRS

the Petitioners did not make a clear record of that objection (AR at 1476-1483

Transcript of January 20 2011 hearing) A detailed review of the transcript for the

January 202011 hearing could support the argument that Petitioners could have

intended to make such an objection and that such an objection could be implied in

statements made on Petitioners behalf at that hearing However Petitioners had an

obligation to make a clear objection on the record at the time of hearing clearly

understood by both the lower court and the parties at the hearing In this light the basis

for Petitioners second assignment of error is far less compelling

Furtherconsideration of the actual substance of the motions filed on behalf of

Ms Miller the State of West Virginia the PERS and the SPRS the lower courts rulings

thereon and Petitioners argument relating to the third assignment of error renders this

objection and the second assignment of error moot The bases for the lower courts

rulings in relation to those Respondents are straightforward and clear and Petitioners

have argued against those rulings as their third assignment of error

413268 22

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

C DISMISSAL OF THE STATE OF WEST VIRGINIA SPRS AND PERS WAS APPROPRIATE AS PETITIONERS COMPLAINT FAILED TO STATE ANY ALLEGATIONS AGAINST THE SPRS AND PERS AND THE ALLEGATIONS AGAINST THE STATE MERELY DUPLICATED THE ALLEGATIONS ASSERTED AGAINST THE CPRB

PERS and SPRS

In the lower court the Respondents State of West Virginia SPRS and PERS

argued and the lower court ultimately agreed that Petitioners Complaint included

literally no allegations against the two retirement systems and that the allegations

against the State of West Virginia and the CPRB were the same and did not distinguish

the CPRB from the State of West Virginia in any relevant way Thus contrary to

Petitioners argument here although the lower court did conclude that these three

Respondents were not necessary parties that conclusion followed from the lower courts

primary ruling that the Complaint was deficient in that it contained no allegations

sufficient to state a distinct claim against them Petitioners now argue without any

significant discussion or explanation that the two retirement systems were named and

must be retained as parties for the purposes of effecting [equitable] relief (Petitioners

Brief at 39)9

Reference to Petitioners Complaint shows that the PERS was alleged to have

been established pursuant to West Virginia Code sectsect 5-10-1 to -55 (AR at 405

Complaint -r 45) was alleged to be administered by the CPRB pursuant to W Va Code

9 Petitioners also argue that Respondent Terasa L Miller was properly named for the same reason ie to effect equitable relief The reasons justifying Ms Millers dismissal are set forth in the argument in response to the first assignment of error however it should be noted that there is no apparent need to retain Ms Miller as a party where the CPRB is already a party and Petitioners present no explanation as to why the presence of the CPRB as a party is not sufficient should equitable relief be deemed appropriate 413268 23

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

sect 5-100-1 (AR at 406 Complaint -r 46) and was further alleged to be different from

other public employee systems in certain particulars (AR at 407 Complaint-r 54)

There appears to be no other allegation expressly referring to the PERS set forth

elsewhere in the Complaint and the lower court found that these allegations taken as a

whole are insufficient to present any cognizable claim of any kind against the PERS

Thus the Complaint failed to state a claim against the PERS The lower court also

noted that as the Petitioners have alleged that the CPRB administers the PERS the

CPRB appeared to be the real party in interest10 so that no claim against the PERS was

necessary regardless of the sufficiency of the allegations against the PERS The lower

courts approach to the naming of the SPRS as a party was essentially the same

In the Complaint the SPRS was alleged to have been established as a retirement

plan pursuant to W Va Code sectsect 15-2A-1 to -22 ( AR at 410 Complaint-r 60) was

alleged to be administered by the Board (AR at 404406 Complaint-r-r 39 46) and

was referred to repeatedly throughout the Complaint as Plan B Although review of the

Complaint shows that Petitioners alleged that they are enrolled in Plan B but contend

that they should be transferred to the retirement plan referred to as Plan A (AR at

406-409 Complaint-r-r 47-4955-57) there appears to be no allegation set forth in the

Complaint against the SPRS as a party defendant Thus as was the case with the

PERS the lower court held that the allegations relating to the SPRS were insufficient to

state a claim of any kind As with the PERS the lower court also noted that in addition

IO As the PERS and SPRS appear to be retirement systems or plans that are not selfshyadministering but are administered by the CPRB the Petitioners have not shown that the PERS and SPRS are entities that can act in any relevant way in the absence of the CPRB 413268 24

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

to the absence of allegations sufficient to state a claim against the SPRS the Petitioners

had alleged that the CPRS administers the SPRS and that it therefore appeared that

the CPRS was the real party in interest and that no claim need be brought against the

SPRS regardless of the sufficiency of the allegations against the SPRS Petitioners

bald statement that the PERS and SPRS are required as parties so that the lower court

may effect equitable relief as may be appropriate simply ignores and fails to address the

lower courts reasoning

State of West Virginia

In their Complaint the Petitioners named both the State of West Virginia and

certain of its agencies eg the CPRS and the West Virginia State Police as parties

However the Complaint contains no allegations that clarify or explain what the

Petitioners intend by naming the State of West Virginia as a distinct party in addition to

the State agencies that are also expressly named This ambiguity is exemplified by

allegations that attribute certain characteristics to the State when those characteristics

are equally attributable to a named defendant State agency eg in paragraph 60 of the

Complaint (AR at 410) the State of West Virginia is alleged to administer two

retirement plans when those plans are administered by the CPRS as expressly provided

by W Va Code sect 5-100-1 Further with the exception of the cited paragraph ie

Complaint 1T 60 there appears to be no other express reference to the State of West

Virginia in the Complaint either as an actor or as a party independent of the named

State agencies

413268 25

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

As the Respondents argued below the State of West Virginia is capable of acting

only through its various agencies and departments

As a practical consequence of the expansion of government and the proliferation of bodies charged with conducting the States business we have recognized that proceedings against boards and commissions created by the Legislature as agencies of the State are suits against the state within the meaning of Article VI Section 35 of the Constitution of West Virginia even though the State is not named as a party in such proceedings Hamill v Koontz 134 WVa 439 443 59 SE2d 879 882 (1950) see also Hesse v State Soil Conservation Committee 153 WVa 111 115 168 SE2d 293 295 (1969) (constitutional immunity relates not only to the State of West Virginia but extends to an agency of the state to which it has delegated performance of certain of its duties)

Arnold Agency v W Va Lottery Commn 206 W Va 583 590-91526 SE2d 814

821-22 ( 1999) (em phasis added)

Thus Respondents contend that it is legally sufficient and preferable for

practical reasons for the named parties to be limited to the agencies of the State of

West Virginia that are alleged to have engaged in actionable conduct More pointedly

as with the PERS and SPRS there are simply no allegations in the Complaint that are

sufficient to state a claim against the State of West Virginia if the State of West Virginia

is intended to be named as a party that is somehow independent of the CPRB and the

West Virginia State Police The Petitioners fail to address these issues in any significant

way but appear to contend that the State of West Virginia must be named as a party in

addition to the appropriate State agency when an action is brought against a State

agency seeking recovery through the States insurance policy

The only allegation necessary to the Petitioners commencement of an action

seeking recovery against a State agency through the States insurance policy is the

allegation that recovery is sought under and up to the limits of the States liability

413268 26

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

insurance coverage 11 See eg Parkulo v W Va Bd of Probation and Parole 199 W

Va 161 169-70 483 SE2d 507 515-16 (1996) As noted above this Court has plainly

determined that proceedings against State agencies are suits against the State These

Respondents are aware of no case where the State of West Virginia was deemed a

necessary party in addition to a State agency where the States insurance coverage was

implicated As the State of West Virginia acts at all times through its agencies the

identification of the State of West Virginia as if it were a party separate and independent

from its agencies is merely confusing and permits a measure of ambiguity and

vagueness that can only serve to hinder a courts deliberations in this matter Thus the

lower court was correct to dismiss the State of West Virginia

11 Petitioners only belatedly attempted to comply with this actual requirement in their Amended Complaint (AR at 1565 Amended Complaint ~ 111) 413268 27

CONCLUSION

For the foregoing reasons the Respondents West Virginia Consolidated Public

Retirement Board the State of West Virginia the West Virginia State Police Retirement

System the West Virginia Public Employees Retirement System and Terasa L Miller

respectfully request that the Court affirm the circuit courts order dismissing the claims

against them

STATE OF WEST VIRGINIA WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM WEST VIRGINIA CONSOLIDATED PUBLIC RETIREMENT BOARD WEST VIRGINIA PUBLIC EMPLOYEES RETIREMENTSYSTEM and TERASA L MILLER

By Counsel

Tho as S Sweene S No 3672) E Taylor George (WVSB No 8892) MacCorkle Lavender amp Sweeney PI C Post Office Box 3283 Charleston West Virginia 25332-3283 304-344-5600 Telephone 304-344-8141 Facsimile

413268 28

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

Docket No 11-0746

DAWN COLLETTE BLAND et aI

Petitioners

v

STATE OF WEST VIRGINIA et at

Respondents

CERTIFICATE OF SERVICE

I Thomas S Sweeney counsel for Defendants State of West Virginia West

Virginia State Police Retirement System West Virginia Consolidated Public Retirement

Board West Virginia Public Employees Retirement System and Terasa L Miller acting

Executive Director of the West Virginia Consolidated Public Retirement Board do

hereby certify that on this 15th day of September 2011 I served a true and correct copy

of the foregoing RESPONDENTS MOTION FOR CLARIFICATION upon counsel of

record by hand or by depositing the same in the United States mail postage prepaid

sealed in an envelope and addressed as follows

Marvin W Masters Esquire The Masters Law Firm LC 181 Summers Street Charleston West Virginia 25301

413268 29

Wendy E Greve Esquire Gary E Pullin Esquire Pullin Fowler amp Flanagan PLLC 901 Quarrier Street Charleston WV 25301

3672) E Taylor George (WV Bal1 892) MacCorkle Lavenderamp Sweeney PLLC 300 Summers Street Suite 800 Charleston WV 25301 Telephone (304) 344-5600 Facsimile (304) 344-8141

413268 30

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

Docket No 11-0746

DAWN COLLETTE BLAND et aI

Petitioners

v

STATE OF WEST VIRGINIA et at

Respondents

CERTIFICATE OF SERVICE

I Thomas S Sweeney counsel for Defendants State of West Virginia West

Virginia State Police Retirement System West Virginia Consolidated Public Retirement

Board West Virginia Public Employees Retirement System and Terasa L Miller acting

Executive Director of the West Virginia Consolidated Public Retirement Board do

hereby certify that on this 15th day of September 2011 I served a true and correct copy

of the foregoing RESPONDENTS MOTION FOR CLARIFICATION upon counsel of

record by hand or by depositing the same in the United States mail postage prepaid

sealed in an envelope and addressed as follows

Marvin W Masters Esquire The Masters Law Firm LC 181 Summers Street Charleston West Virginia 25301

413268 29

Wendy E Greve Esquire Gary E Pullin Esquire Pullin Fowler amp Flanagan PLLC 901 Quarrier Street Charleston WV 25301

3672) E Taylor George (WV Bal1 892) MacCorkle Lavenderamp Sweeney PLLC 300 Summers Street Suite 800 Charleston WV 25301 Telephone (304) 344-5600 Facsimile (304) 344-8141

413268 30

Wendy E Greve Esquire Gary E Pullin Esquire Pullin Fowler amp Flanagan PLLC 901 Quarrier Street Charleston WV 25301

3672) E Taylor George (WV Bal1 892) MacCorkle Lavenderamp Sweeney PLLC 300 Summers Street Suite 800 Charleston WV 25301 Telephone (304) 344-5600 Facsimile (304) 344-8141

413268 30